IP: New questions from the 2nd Circuit in the 2600 case.

[David Farber <dave@farber.net>]

>To: dave@farber.net, gnu@toad.com
>Subject: New questions from the 2nd Circuit in the 2600 case.
>Date: Thu, 10 May 2001 12:23:53 -0700
>From: John Gilmore <gnu@toad.com>
>
>[Dave, please add this to the feed if you find it interesting 
>enough!   --John]
>
>                 United States Court of Appeals
>                   for the Second Circuit
>
>...on the 8th day of May two thousand one,
>
>                            ORDER
>
>The panel modifies the oral instruction for supplemental letter briefs
>in the captioned case, given at the close of the argument on May 1,
>2001, by authorizing the parties and the Intervenor to augment their
>responses to no more than 25 pages, and inviting responses to the
>following questions:
>
>1.  Are the anti-trafficking provisions of the Digital Millennium
>Copyright Act content-neutral?  See 111 F. Supp 2d 294, 328-29
>(S.D.N.Y. 2000).
>
>2.  Does DeCSS have both speech and non-speech elements?
>
>3.  Does the dissemination of DeCSS have both speech and non-speech
>elements?
>
>4.  Does the use of DeCSS to decrypt an encrypted DVD have both
>speech and non-speech elements?
>
>5.  Does the existence of non-speech elements, along with speech
>elements, in an activity sought to be regulated alone justify
>intermediate level scrutiny?
>
>6.  If DeCSS or its dissemination or its use to decrypt has both
>speech and non-speech elements and is not subject to intermediate
>levevl scrutiny simply because of the non-speech elements, is
>intermediate level scrutiny appropriate because of the close causal
>link between dissemination of DeCSS and its improper use?  See 111
>F. Supp. 2d at 331-32.
>
>7.  If the District Court is correct that the dissemination of DeCSS
>"carries very substantial risk of imminent harm," 111 F. Supp. 2d at
>332, does that risk alone justify the injunction?  In other words,
>does that risk satisfy the requirements for regulating speech under
>Brandenburg v. Ohio, 395 U.S. 444 (1969), thereby rendering
>unnecessary an inquiry as to whether non-speech elements of DeCSS or
>its dissemination or its use (if such exists) may be regulated under
>United States v. O'Brien, 391 U.S. 367 (1968)?
>
>8.  Are the three criteria identified at 111 F. Supp. 2d 333 the
>correct criteria for determining the validity, under intermediate
>level scrutiny, of the use of DeCSS that has been enjoined?
>
>9.  If not, what modification or supplementation would be required to
>conform to First Amendment requirements?
>
>10.  Are the three criteria identified at 111 F. Supp 2d 341 and the
>"clear and convincing evidence" standard the correct criteria and the
>correct standard of proof for testing the validity of the injunction's
>prohibition of posting on the defendant's website and of linking?
>
>11.  If not, what modification or supplementation would be required to
>conform to First Amendment requirements?
>
>The references to the District Court's opinion are intended only to
>identify some passages that concern the question posed and not to
>imply that no other passages in the opinion are pertinent to the
>question.  Responses need not be amplified if a "yes" or "no" will
>suffice.
>
>The parties and Intervenor shall submit their supplemental letter
>briefs to this Court no later than Wednesday, May 30, 2001.
>
>FOR THE COURT:
>Roseann B. MacKechnie, Clerk
>By: ___Lucille_Carr___



For archives see: http://www.interesting-people.org/